This post is part of the Dialogue series, “When Abortion is Illegal“
In the contemporary U.S. political battles over abortion, faith leaders are too often imagined as exclusively aligned with the anti-abortion camp. Prior to Roe, however, clergy ran an extensive abortion referral network. Between 1967-73, a group of 2,000 liberal Protestant ministers, Jewish rabbis, dissident Catholic nuns and priests, and laity from a spectrum of denominations, openly facilitated access to abortion for tens of thousands.
Active in forty states, two Canadian provinces, and Tokyo, Japan, the Clergy Consultation Service (CCS) on Abortion was one of the largest abortion referral services in the United States before Roe v. Wade.
My research examines this forgotten history of religious activists and their long struggle for reproductive freedom. In my forthcoming book, A Sacred Choice: Liberal Religion and the Struggle for Reproductive Rights, I trace the evolution of liberal religious thought and activism from the contraceptive battles of the 1930s to the abortion rights struggles of the postwar period. The history of the CCS offers a vision of how, in the post-Dobbs landscape, pro-choice advocates might utilize religious resources in the unfinished legal battles to share information about reproductive health and to preserve abortion access.
A Religious Right to Abortion Counseling
The CCS grew out of longstanding practices of clergy covertly helping abortion seekers obtain (il)legal abortions. Pastoral counseling placed clergy and their congregants in quiet conflict with the laws governing abortion, which included restrictions in sharing information about abortifacients and abortion providers.
By the early-1960s, as Jewish and Protestant denominations openly lined up to support abortion law reform and repeal, some activist clergy became impatient with the pace of change. There was a sense that political reform could take years even as the body count of illegal abortion seekers continued to mount.
It was against this backdrop that clergy organized the Clergy Consultation Service on Abortion and announced their intent to offer abortion counseling and referral. CCS counseling included the sharing of accurate and practical medical information about birth control, abortion procedures and how to get safe medical treatment. Clergy helped women to safely travel across state or national borders and to navigate domestic and foreign legal and medical systems. By building and maintaining an international network of reliable abortion providers and counselors, CCS clergy became vital links in an information chain that enabled thousands of abortion seekers to get much needed healthcare.
The CCS viewed its activism as extending from the “sanctity of the pastoral counseling relationship.” This relationship—often called the “pastor-penitent” relationship—asserted a zone of privacy from state surveillance for abortion seekers and clergy counselors. CCS clergy sought to turn religious spaces into sanctuaries where abortion seekers—especially in states that prohibited sharing such information—could learn how to terminate a pregnancy. Such information sharing, however, set the CCS on a collision course with law enforcement.
In jurisdictions where abortion information was criminalized, CCS clergy sometimes found themselves in the crosshairs of district attorneys and state politicians. In Florida, Georgia, Massachusetts and New York, conflicts with local authorities or existing laws led to court battles. In these battles, Protestant and Jewish clergy articulated a religious right to offer reproductive counseling, including abortion referrals.
The history of these legal conflicts is one of unrealized potential and missed opportunities.
But in examining CCS legal challenges, which were mounted and dismissed on procedural or circumstantial grounds, there is still potential to realize a central claim of the CCS and the denominations to which its members belonged: abortion counseling and referral were both free speech and religious speech.
Clergy, they averred, were thus constitutionally protected, and exempted from state laws banning the sharing of such information.
CCS in the Courts
The notion that abortion counseling was a religious practice manifested in cases like Lyons v Lefkowitz (1969), Landreth v. Hopkins (1971), and Commonwealth v. Hare (1970-72). The theory of abortion counseling as a religious freedom and privacy issue was also articulated in the shadow of the landmark case Doe v Bolton (1973). In these cases, clergy advanced a simple premise: CCS members had a religious right to support abortion seekers in getting information and medical procedures.
The assertion that clergy had a religious right to offer abortion counseling was articulated in Lyons v Lefkowitz (1969) and Landreth v. Hopkins (1971). In both cases, CCS clergy attempted to enumerate how restrictive abortion laws interfered with their free exercise of religion, including abortion counseling. In the former case, CCS member Jesse Lyons sued New York State to establish his “constitutional right to refer his pastoral ‘counselees’ to qualified gynecologists and surgeons.” The same principles of religious freedom and abortion counseling appeared in Landreth v. Hopkins (1971). This case involved CCS ministers who sought to pre-empt grand jury investigations and potential charges under Florida statutes, which prohibited circulating material that gave “any advice, direction, information or knowledge” about procuring an abortion. A three-judge panel rejected the clergymen’s case as “too speculative.” The issue came up again in Georgia when Atlanta based CCS ministers joined in Doe v Bolton arguing for a religious right to offer abortion counseling and referral. In all these cases, courts avoided giving CCS members a platform to test the claim that religious freedom included the right to abortion counseling and referral.
A parallel strategy emerged in 1969 when an Ohio minister named Robert Hare ran afoul of Massachusetts laws that held any person who “aids, counsels, or procures” abortion services to be criminally liable. The Commonwealth of Massachusetts charged Hare with being an accessory to abortion before the fact. What’s noteworthy about the case is the articulation of a religious right to offer abortion counseling, which was not in Hare’s lawyers’ arguments. Instead, the surrounding campaigns of the Presbytery of Cleveland espoused these principles. The Presbytery issued a statement asking to be brought up on charges, saying that it was aware of and responsible “for the alleged violation.” The Presbytery also affirmed that Rev. Hare was acting on the “basis of his ordination vows and the confessional position of this church.” They believed, invoking Griswold v Connecticut, that the court was reticent to “regard the confessional as less private than the bedroom” and sought to test the constitutional protections surrounding pastor-penitent relationships. The Presbyterians never got their day in court and their claims remained untested, in part because Hare’s case was dropped with the passage of Roe.
Future of Faith-Based Abortion Advocacy
In the shadow of Dobbs, the history of legal struggles to protect faith-based abortion counseling and referral might offer scaffolding to carve out abortion rights. As states once again move toward criminalizing “aiding and abetting” abortion, the attempts by CCS to legally enshrine a religious right to give and receive abortion counseling could provide much needed guidance for abortion advocates and seekers. And, at a moment when conservative jurisprudence has repeatedly underlined religious freedoms and protected religious speech, liberal religious organizations should fight to expand abortion access on similar grounds.
 “Clergy Problem Pregnancy Consultation Service,” 1966, Lawrence Lader Papers, Box 4, Folder 6, New York Public Library.
Gillian Frank is Visiting Affiliate Fellow at Princeton University’s Center for Culture, Society and Religion and the co-host of Sexing History, a podcast about how the history of sexuality shapes our present.
Photo credit: iStock.com/ekazansk
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